A Workable Substantive Due Process

Hon. Timothy M. Tymkovich, Joshua Dos Santos, and Joshua J. Craddock, A Workable Substantive Due Process, 95 Notre Dame L. Rev. 1960 (2020).

Abstract

This Article has three objectives. First, it provides a conceptualization of the various flavors of due process adjudication. Our aim here is not to add a new theory, but to explain what exists in new ways—to put all the pieces of the due process puzzle together and explain how they relate to each other. To the surprise of some, perhaps, we find a small kernel of originalist truth within current forms of substantive due process. In short, the “shocks the conscience” strand of substantive due process jurisprudence prohibits some egregious torts by the state. At a certain level of abstraction, this approach can be squared with the original public meaning of the Fourteenth Amendment’s Due Process Clause during ratification.

Second, the Article explains the confusion currently overtaking the circuits. The confusion we refer to is not about nitty-gritty details. It is fundamental. Courts do not know what law to apply to a given plaintiff’s claim under substantive due process doctrine. There are two generic tests floating around—the shocks-the-conscience test and the fundamental-rights test. Courts disagree about when each test applies. Then there are more specific tests tailored to particular contexts, like pretrial detention. No one knows whether these more specific tests apply exclusively, or whether they apply in addition to one or both generic ones. Our goal here is to explain the debate.

Last, the Article proposes two solutions. Looking to the history of Due Process Clause jurisprudence, as well as to the Supreme Court’s stated policy concerns in this area, we propose dividing substantive due process into (1) cases challenging legislative action, (2) cases challenging executive action, and (3) cases challenging judicial action (though those distinctions themselves will require line drawing). In those challenging legislative action, plaintiffs must show the law impermissibly or irrationally burdens a fundamental right. In cases challenging executive action, plaintiffs must show they were deprived of a liberty or property interest in such an egregious fashion that the conduct shocks the conscience of federal judges. The shocks-the-conscience formulation is not to be an empty phrase, though. In each context, courts should specify the factors that make a case conscience shocking. In fact, we argue that this is what the more specific tests have already done. What has been unclear until now is that many of the cases creating more specific tests for substantive due process violations are simply manifestations of the shocks-the-conscience approach. Finally, in cases challenging judicial action, a state court decision will violate substantive due process only if it is an “arbitrary or capricious” abuse of power.

Legitimate Authority and Just War

Josh Craddock, “Legitimate Authority and Just War,” Providence: A Journal of Christianity & American Foreign Policy, No. 11, pp. 60-66 (Spring-Summer 2018).

Abstract

Recent just war theory discussions have emphasized the just cause and right intention prongs of jus ad bellum, but have offered only cursory analysis of the legitimate authority prong in the American context. This article argues that legitimate authority depends in part on domestic law and that the sovereign's war powers must be exercised in accordance with the rule of law. In the American context, where sovereignty is divided, the Constitution's allocation of war powers should guide analysis. The article provides a survey of executive and congressional powers over war and hostilities, and then applies those legal rules to conflicts in Libya, Syria, and North Korea.

The Case for Complicity-Based Religious Accommodations

Joshua J. Craddock, The Case for Complicity-Based Religious Accommodations, 12 Tenn. J.L. & Pol’y 233 (2018).

Abstract

In recent years, religious objectors in high-profile religious liberty cases such as Burwell v. Hobby Lobby and Zubik v. Burwell have claimed that government policy would force them to become complicit in the moral wrongdoing of third parties. In their article Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516 (2015), Professors Douglas NeJaime and Reva Siegel argue that these complicity-based religious liberty claims should be disfavored. According to their theory, complicity-based claims differ from other religious liberty claims in both "form" and "social logic" because they impose "material" and "dignitary harms" on third parties. 

This article argues that NeJaime and Siegel's third party harm theory is fundamentally flawed, and that complicity-based religious accommodations are both a traditional and necessary part of the American legal framework. Part I examines past Supreme Court precedent in the area of free exercise and finds significant support for complicity-based accommodations. Part II reevaluates the magnitude and legitimacy of the asserted third party harms, then weighs the inconveniences imposed on third parties against the injuries to religious objectors should accommodations be weakened or withdrawn. Part III contends that culture war conflicts will not be resolved through the elimination of religious accommodations in the complicity context, and proposes a subsidiarity-based alternative to imposing coercive legal penalties on religious objectors.

Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?

Joshua J. Craddock, Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?, 40 Harv. J.L. & Pub. Pol’y 539 (2017).

Abstract

What should be the legal status of human beings in utero under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain unfettered authority to make abortion policy?

The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the original meaning of the Fourteenth Amendment.

Social Insecurity: The Case for Totalization with India

Joshua J. Craddock, Social Insecurity: The Case for Totalization with India, Harv. J. Legis. Online (2016).

Abstract

Under current U.S.-India policy, expatriate workers pay into both countries’ social security systems, but are ineligible for benefits from the system in their nation of employment. This dual taxation leads to economic inefficiency and harms both Indian and American citizens working overseas. This short commentary argues that concluding a social security totalization agreement between the United States and India would benefit both countries’ businesses, workers, and economies.

President Obama’s Legacy of Cultural Imperialism

Joshua J. Craddock, “President Obama’s Legacy of Cultural Imperialism,” Natural Family, Vol. 30, No. 4, pp. 350-61 (2016).

Abstract

Liberals once staunchly opposed colonialism politically as well as economically and culturally. Despite President Obama's purported opposition to colonialism, however, his term of office was marked by an imperialistic attitude and course of conduct toward foreign peoples — particularly on issues regarding abortion, sexuality, and the family.

This article argues that the Obama administration's rhetoric on colonialism contradicted its actions in the realm of international affairs and that the administration systematically attempted to impose socially liberal policies on economically developing nations, without considering those countries’ traditional cultures and religious beliefs. The article examines three channels of diplomatic influence: direct advocacy, financial incentives, and international institutions. Finally, it examines local resistance to these foreign values and the appropriation of anti-colonial language to the struggle.

Personhood and After-Birth Abortion

Joshua J. Craddock, Personhood and After-Birth Abortion, 40 Human Life Rev. 97 (2014).

Abstract

Two Australian ethicists writing in the Journal of Medical Ethics recently ignited controversy by suggesting that infanticide or “after-birth abortion” should be tolerated. Given the contextual background of Kermit Gosnell's prosecution, this paper re-examines the argument for after-birth abortion as advanced by Giubilini and Minerva, and concludes that the authors misunderstand human personhood and fail to justify their own ethical reasoning. 

The article first reconstructs Giubilini and Minerva's argument and situates it in a philosophical tradition alongside similar arguments for infanticide. The article then critiques Giubilini and Minerva's functionalist account of human personhood and critically analyzes their reasoning. The article concludes by observing that Giubilini and Minerva either prove that infanticide should be legal or that society’s definition of personhood must be reconsidered and abortion, like infanticide, should be illegal.